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Bowman v. Stott12/31/2003
estions remain as to whether Bowman consented or acquiesced to the presence of the dog in the home that are properly left to a jury.
As set forth above, Bowman presented evidence to the trial court which would support a conclusion that she did not consent or acquiesce to the presence of the dog. Such evidence must be viewed most strongly in favor of Bowman and create genuine issues of material fact. Because genuine issues of material fact remain as to the defense of assumption of the risk, the trial court erred in granting summary judgment to Stott on the common law claim. The judgment must be reversed as to this claim and remanded for further proceedings.
III.
Bowman's assignment of error is well taken. The judgment of the trial court is reversed and the cause is remanded for further proceedings.
Judgment reversed, and remanded.
BETH WHITMORE FOR THE COURT
BATCHELDER, J. CONCURS, SAYING:
Because I believe the factual record in this case is insufficient to properly resolve the question, I concur in the judgment of the main opinion to remand this matter for further proceedings
Many of the facts presented in this case are essentially undisputed. However, "even if the underlying evidence is undisputed, a court may nevertheless be warranted in holding that a genuine issue of fact is presented" and should be resolved by the trier of fact. Duke v. Sanymetal Products Co. (1972), 31 Ohio App.2d 78, 81. The facts presented by the affidavits of the parties present a picture that is distinctly incomplete and create a genuine issue as to whether Ms. Bowman was a harborer of the dog. See id. A proper resolution of this matter, in my view, requires the presentation and consideration of additional facts.
SLABY, P. J.
DISSENTS, SAYING:
I respectfully dissent. The issue is not who has control of the dog. It is whether Bowman had control of the premises in which the dog resided. The answer to that question is clear. There is no factual dispute that from time to time, as a resident of the home, Bowman had control over the entire premises and all its contents, including the dog.
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